C. M. Thambi v. Sivan C.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 2ND DAY OF FEBRUARY 2018 / 13TH MAGHA, 1939** ## **OP(C).No. 3627 of 2017 (O)** **EP 140/2015 AND EA 304/2017 IN EP NO 140/2015 IN O.S 117/2014 OF THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE.** **-----------** ## **PETITIONER** **C.M.THAMBI, S/O.CHANTHAPPAN, NEDUVALAPPIL HOUSE, ELATHUR P.O., KOZHIKODE DISTRICT-673 303.** **BY ADV. SRI.R.K.MURALEEDHARAN.** ## **RESPONDENT** **SIVAN.C, S/O.KELUKUTTY, CHALIKKARA HOUSE, POKKUNNU P.O., KOZHIKODE DISTRICT-673 007.** **BY ADVS: SRI.R.SUDHISH SMT.M.MANJU** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Hr.........** **OP(C).No. 3627 of 2017 (O)** ## **APPENDIX** **PETITIONER(S)' EXHIBITS EXHIBIT P1- A TRUE COPY OF THE EP NO.140/2015 IN OS.NO.117/2014. EXHIBIT P2- A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER DATED 08/03/2016. EXHIBIT P3- A TRUE COPY OF THE AFFIDAVIT FILED ALONG WITH EA.NO.304/2017 DATED 22/09/2017 PETITION FOR TIME. EXHIBIT P4- A TRUE COPY OF THE OBJECTION FILED TO EXT.P3 DATED 28/10/2017. EXHIBIT P5- TRUE COPY OF THE EP. NO.140/2015 IN OS.NO.117/2014 DATED 14/11/2017. EXHIBIT P6- TRUE COPY OF THE ORDER IN EA.NO.304/2017 DATED 14/11/2017. EXHIBIT P7- A TRUE COPY OF THE PROCLAMATION OF SALE.** ## **RESPONDENT(S)' EXHIBITS** ## **NIL** **// TRUE COPY//** **P.S TO JUDGE.** **Hr.....** ## C.R. ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## O.P.(C) No.3627 of 2017 ----------------------------------------Dated this the 2[nd] day of February, 2018 ## _**JUDGMENT**_ The main prayer in this Original Petition (Civil) filed under the enabling provisions contained in Article 227 of the Constitution of India is as follows : _“Set aside Exts.P5 and P6 orders and Ext.P7 proclamation of sale of the property owned by the petitioner in RS No.33/1A3 in Elathur Amsom Desom of Kozhikode Taluk.”_ 2. Heard Sri.R.K.Muralidharan, learned counsel appearing for the petitioner/judgment debtor and Sri.R.Sudhish, learned counsel appearing for the respondent/decree holder. 3. The petitioner herein is the defendant in a suit for realisation of money, filed by the respondent. It is stated that the suit was decreed ex-parte and the petitioner came to know about the decree only after he received notice in the execution proceedings. Immediately thereafter he had filed Exhibit-P2 objection dated 8.3.2016 contending that the centage value of the property scheduled in the Execution Petition is nearly Rs.2,50,000/- and that sale of 2 cents, out of the total extent of 17 cents, of that property would be more sufficient to meet the entire decree debt of Rs.3,25,000/-. The court below had initially fixed the : **:2::** OP(C) 3627/17 upset price of the property as Rs.12,00,000/- and later the upset prize was reduced to Rs.11,50,000/- by the execution court on an application filed by the decree holder. Going by the admitted facts, it is seen that the total extent of the property covered by the schedule in the Execution Petition is 17 cents and even the upset prize fixed by the court even after reduction comes to Rs.11,50,000/-. Further it is also noted that the decree debt comes to about Rs.3,25,000/-. Therefore, it appears that the contention of the petitioner/judgment debtor that sale of the part of the property alone would have suffice to meet the entire decree debt appears to be prima facie strong and tenable. 4. The Apex Court and various High Courts have held in a catena of decisions that it is indeed the duty of the execution court to consider whether sale of only a part of the property would be sufficient to meet the decree debt, in terms of the provisions contained in Order XXI Rule 64 of the C.P.C. It has also been held by the Apex Court in the decision as in _**Balakrishnan v. Malaiyandi Konar**_ reported in ## _**(2006) 3 SCC 49**_ as follows : _“In all execution proceedings, the court has to first decide whether it is necessary to bring the entire property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small the court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold. This is not just a discretion but an obligation imposed on the court. The sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction.”_ : **:3::** OP(C) 3627/17 After the amendment of the Constitution introduced as per the 44[th] Amendment Act, 1978, made effective from 20.6.1979, clause (f) of Article 19(1) was deleted whereby the right to property was no longer a fundamental right under part III of the Constitution of India. However, the right to property is duly protected by the provisions contained in Article 300-A of the Constitution of India, introduced by the abovesaid 44[th] Amendment Act, 1978 with effect from 20.6.1979, which reads as follows : _**"300A. Persons not to be deprived of property save by authority of law** -No person shall be deprived of his property save by authority of law.”_ It has been held by the Apex Court in the decision as in _**Bishamber v. State of Uttar Pradesh**_ reported in _AIR 1982 SC 33_ that though the right not to be deprived of property save by authority of law is no longer a fundamental right, it is still a constitutional right. 5. It is now trite law that in view of a catena of rulings of the Apex Court and various High Courts, commencing from Maneka Gandhi v. Union of India reported in (1978) 1 SCC 248 = AIR 1978 SC 597 the procedure which is conceived in Article 21 of the Constitution of India for depriving life or personal liberty should be just, fair and reasonable. Therefore, by a harmonious reading of the constitutional provisions, it is by now too well established that even the right to property conceived in Article 300-A of the Constitution of India could be deprived only with the authority of the law which is just fair and : **:4::** OP(C) 3627/17 reasonable. When that is the position even the deprivation of the property of a litigant which is regulated by the provisions in the C.P.C. should be in strict confirmity with the substance and spirit of the provisions contained in the Code of Civil Procedure. Any deviance or violation of the procedure conceived in the C.P.C. in the provisions as in Rule 66 of Order XXI, would inevitably lead to the situation of transgressing such constitutional mandate of due process. 6. Rule 64 and 66 of Order XXI of the C.P.C. reads as follows : - _“_ _**64. Power to order property attached to be sold and proceeds to be paid to person entitled.** - Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same._ _xx xx xx_ _**66. Proclamation of sales by public auction.** - (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause proclamation of the intended sale to be made in the language of such Court._ - _(2) Such proclamation shall be drawn up after notice to the decree-_ - _holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-_ - _(a) the property to be sold or, where a part of the property would be sufficient to satisfy the decree, such part;_ - _(b) the revenue assessed upon the estate or part of the state, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;_ - _(c) any encumbrance to which the property is liable;_ - _(d) the amount for the recovery of which the sale is ordered; and_ - _(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property;_ - _Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:_ _Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties._ - _(3) Every application for an order for sale under this rule shall be_ - _accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far_ : **:5::** OP(C) 3627/17 _as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation._ _(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.”_ Therefore, if the sale proceedings are proceeded with by the execution court in violation of the provisions contained in Rule 66 of Order XXI of the C.P.C., then it would amount to deprivation of the property of the judgment debtor in a manner which is against the procedure established by law and hence the said impugned sale proceedings would be illegal and ultravires. Even the reduced upset prize fixed by the execution court would prima facie disclose that sale of the part of the property would have been sufficient. Since these aspects have not been duly adverted to and considered by the court below, this Court is constrained to interdict with the impugned proceedings by resort to the constitutionally conferred discretionary powers of visitorial superintendence conferred under Article 227 of the Constitution of India. 7. The learned counsel for the respondent submits that it is now reliably learnt that there is another attachment on the very same property of the petitioner covered in the Execution Petition, in respect of a suit filed by the petitioner's brother, wherein the petitioner has been arrayed as the defendant therein and that aspect of the matter has not been disclosed by the petitioner either before this Court or before the execution court. Sri.R.K.Muralidharan, learned counsel appearing for : **:6::** OP(C) 3627/17 the petitioner, submits that he has no instruction about this aspect and that therefore, he is not in a position to contradict or confirm the correctness of this factual submission. The said factual aspect now sought to be raised by the respondent is not seen brought to the notice of the execution court or before this Court so far. However, it is made clear that it will be open to the respondent to bring to the notice of the execution court concerned about this factual aspect and it is for that court to deal with that aspect appropriately, after hearing both sides. 8. Accordingly, it is ordered that Exhibits-P5, P6 and P7 proceedings of the execution court are set aside. The matter will stand remitted to the execution court for consideration afresh after hearing both sides. Learned counsel appearing for the petitioner submits that the petitioner would forthwith make an application for appointment of an Advocate Commissioner to report about the value of the property and to identify the portion of the property, the sale of which should be sufficient to meet the decree debt, and about the divisibility of the property, etc. The parties will also be at liberty to lead necessary and relevant evidence in support of their case. Thereafter, the court below will decide all these matters afresh, as directed herein above without much delay. None of the observations in this judgment should be construed as a final opinion on the part of this Court that part of the sale portion of the property alone would be suffice to meet the decree debt and those are : **:7::** OP(C) 3627/17 all issues which are fully and best left to the domain and province of the execution court to decide afresh including matters relating to the divisibility of the property. It will be open to the decree holder and the judgment debtor to furnish their work memos to the Advocate Commissioner on matters to be ascertained. The entire process in this regard may be completed without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment. With these observations and directions, the Original Petition (Civil) will stand finally disposed of. **ALEXANDER THOMAS JUDGE** csl